Warren ex rel. Washburn v. Southern Kansas Railway Co.

The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Johnson county by Frank Warren, by his next friend, W. H. Washburn, against the Southern Kansas Railway Company, for personal injuries alleged to have been caused by the negligence of the railway company. The case was tried by the court and a jury; and after the plaintiff had introduced all his evidence, and rested, the defendant demurred to the evidence, upon the ground that it did not prove any cause of action; and the court sustained the demurrer, discharged the jury, and rendered judgment in favor of the defendant, and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review. The alleged injuries were received on July 13,1885, at about 9 o’clock in the morning, at the railway company’s station, in the town of Edgerton, in Johnson county, Kansas. At the time of receiving the injuries the plaintiff was nineteen years and four months old. He had lived in the town of Edgerton for about one year, and seems to have been well acquainted there, and with the railway company’s mode of business and signals. The injuries seem to have occurred in the following [410] manner: The plaintiff desired to go from Edgerton to Wells-ville, a town on the company’s railway about five or six miles southwest of Edgerton. He kuew that a freight train would soon be due, and that no passenger train would be due until about 12 o’clock. He went to the company’s ticket agent at Edgerton, William Walton, and inquired of him if the freight train was on time, and the ticket agent answered substantially that it was; and the plaintiff then said to the ticket agent, “Do they carry passengers on that train yet?” and the ticket agent answered, “They do;” and then the plaintiff said to the ticket agent, “Well, then, Billy, give me a ticket to Wellsville; ” and the ticket agent then stamped a ticket for Wellsville, and handed it to the plaintiff, and the plaintiff paid him therefor sixteen cents. This was about all that was said or done at the time. No one at any time told the plaintiff when, or how, or where to get on ,the train, or what car to get on. Soon afterward the train came in from the northeast, and stopped, with the engine standing at the water tank southwest of the station platform -and about 100 feet therefrom. The caboose was about 300 or 400 feet northeast from the platform. The -train remained several minutes while taking, in water, and then backed up about 300 or 400 feet to the east end of the yard for some switching to be done, where it remained about twenty or thirty minutes. The plaintiff, after purchasing his ticket, and during all the time that the engine was in taking water, and the train backing, and the switching being done, and until the train started to leave, stood on the southwest corner of the station platform talking with a friend. Prior to this time the company’s freight trains sometimes stopped at Edgerton with the caboose at the platform, and sometimes they did not. This was all well known to the plaintiff. When the switching was all done, the conductor gave a.signal for the train to start. The plaintiff understood this signal. The train then moved slowly in the direction of the platform, and the plaintiff went- to the edge thereof; and when the first car, the one immediately behind and attached to the engine, came opposite to the place where he stood, he attempted to jump upon it, [411] but fell to the ground between the car and the platform, and received the injuries of which he now complains. The car was an ordinary stock car. The principal injury received by the plaintiff was the crushing of his left foot in such a manner as to require the amputation thereof, just above the ankle-joint. Do these facts show a cause of action against the railway company? In order that the plaintiff shall recover in this action it is necessary for him to show that the defendant, through its servants or agents, was guilty of culpable negligence; that this negligence caused the injuries complained of, and that the plaintiff himself was free from all culpable, contributory negligence. Has he shown this ? It is difficult to see how the railway company, by any negligence on its part, caused the injuries. We suppose it will hardly be claimed that the company was guilty of negligence in stopping its train at the water tank to take in water, and in permitting the train to remain there for a few minutes; and here we might say that there was evidence introduced on the trial tending to show that while the train was standing at that place, two other passengers for this train walked back to the caboose and got upon it in safety. We suppose it will hardly be claimed that the company was guilty of negligence in moving the train back to the east side of the yard and allowing it to remain there for some twenty or thirty minutes, and in doing some switching in the meantime. Nor will it be claimed that the company was guilty of negligence in again moving the train forward toward the station; nor can it be claimed that in this last removal of the train the company was guilty of negligence in not stopping the train with the caboose immediately in front of the station, for before the caboose had reached that point the plaintiff had attempted to jum|> upon the first car arriving there, and had received the injuries of which he now complains. From anything that can positively be known, the train might have stopped with the caboose immediately in front of the station, if the plaintiff had only remained where he stood on the platform ready to get upon the caboose as soon as it arrived. We [412] take it, however, that the principal negligence complained of is the conductor’s giving a signal for the train to start, and “to leave town.” The plaintiff himself testified that the conductor gave such a signal, and that he, the plaintiff, understood what it meant. The giving of this signal, however, did not cause the injuries. The injuries did not immediately flow from the giving of the signal, nor were they the natural or probable consequences thereof. The giving of the signal did not necessarily cause the plaintiff to attempt to jump upon a stock car while it was in motion, and which had no steps or other conveniences to enable persons to get upon it, except an iron ladder upon its side. Such a signal would not prevent the plaintiff from waiting where he stood on the platform until the caboose got to the point where he was standing, nor would it prevent him from attempting to get upon the caboose instead of upon the stock car; or, if that was dangerous, it would not prevent him from remaining at the station until the next train arrived, some three hours later. He knew when he bought his ticket that freight trains did not always or generally stop with the caboose immediately in front of the station, and undoubtedly he knew that it was not proper for him to attempt to get upon a stock car while in motion, or to ride upon or in any car of a freight train except the caboose. The entire negligence complained of, however, is the foregoing signal, coupled with the failure of the railway company through its agents and servants to instruct the plaintiff when and where and how to get upon the train, and upon what or into which car to get. We do not think that the railway company is required to give any such instructions, and especially not to a young man in his twentieth year, strong and healthy and ordinarily intelligent, and one who knew as much as the plaintiff did concerning the railroad business at that particular place. Under the circumstances, we do not think it devolved upon “Billy” Walton, the ticket agent, or upon any other one of the company’s agents or servants to instruct the plaintiff how to take care of himself. He well knew that it was not the custom for passengers intending to ride upon a railroad [413] train, even upon a freight train, to attempt to jump upon a stock car while in motion, or in any case to ride upon or in a stock car. If the railway company did not furnish sufficient facilities to the plaintiff for him to get upon the caboose, and even if it would not have done so if he had waited for the caboose to arrive at the platform where he was standing, then his remedy was to let that train pass without attempting to get upon it, and to sue the company for damages. personal injuries; culpable negligence of plaintiff. It is probably unnecessary to say anything with regard to the plaintiff’s contributory negligence. Generally, it is not per se negligence for a person to get on or off a railroad train in the ordinary manner, and as people sometimes do, while the train is only slightly in motion. (A. T. & S. F. Rld. Co. v. McCandless, 33 Kas. 373, 374, and cases there cited.) But to attempt to get upon a traiu in the extraordinary manner in which the plaintiff attempted to get Up0n the train in this case, would seem to be per se culpable negligence. (Harvey v. Eastern Rld. Co., 116 Mass. 269; Rid. Co. v. Le Gierse, 51 Tex. 189.) The judgment of the court will be affirmed. All the Justices concurring.